JOHNSON JOHNSON v. LAWTON

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Court of Appeal, First District, Division 4, California.

JOHNSON & JOHNSON, Petitioner, v. SUPERIOR COURT, City and County of San Francisco, Respondent, Wendy LAWTON, Barbara Marrot, Jean Marrot, Michael Marrot and Melani Galimidi, Real Parties in Interest.

AO25093, AO25125 and AO25126.

Decided: March 30, 1984

Gibson, Dunn & Crutcher, G. Edward Fitzgerald, Douglas W. MacNeille, Los Angeles, for petitioner. No appearance for respondent. Leroy Hersh, Dan Bolton, Hersh & Hersh, P.C., San Francisco, for real parties in interest.

These consolidated petitions raise the same issue.   Is service and return filed within three years after commencement of the action within the meaning of section 581a of the Code of Civil Procedure 1 where summons and complaint are mailed within three years of commencement of the action but a return receipt is not obtained within this period?

Procedural History—Facts

On April 28, 1980, Barbara, Jean and Michael Marrot, real parties in interest in AO25093, filed a complaint against numerous drug companies arising from injuries allegedly resulting from exposure to the drug diethylstilbestrol (DES).   On April 27, 1983, plaintiffs placed summons and complaint in the mail to petitioner, return receipt requested.2  On April 28, 1983, plaintiffs filed a proof of service showing the date of mailing.   The summons and complaint was not received, however, until May 2, 1983, on which date the return receipt was signed.

On June 6, 1983, petitioner filed a motion to quash service of summons pursuant to section 418.10 and a motion to dismiss pursuant to section 581a.   Petitioner pointed out that the proof of service was not complete without that document and that dismissal was required by section 581a.   Plaintiffs replied, contending that service was complete and attaching a copy of the return receipt which was signed and stamped with the date, May 2, 1983.   The matter was heard on June 24, 1983, and in an order dated June 27, 1983, respondent court denied the motions stating:  “There is no reason why the rationale of the decision in Ginns v. Shumate (1977) 65 Cal.App.3d 802, 135 Cal.Rptr. 604, should not apply to determine the date on which service is complete under C.C.P. section 415.40, for purpose of applying section 581a.   Here, service was complete on April 27, 1982 [sic].”

Petitioner moved for reconsideration pointing out as new facts the information that the return receipt was postmarked May 2, 1983, and that a federal district court had granted petitioner's motion to dismiss under the same factual situation.   Plaintiffs replied, arguing that there were no new facts not known at the time of the hearing on the motions.   Plaintiffs also pointed out that in a similar motion by Premo Pharmaceutical Laboratories, Inc., respondent court had ordered plaintiff to file a nunc pro tunc amendment to the return of service containing the return receipt signed by Premo.   Plaintiffs attached a copy of the amendment to return of service as to both Premo Pharmaceutical and Johnson & Johnson.

On November 4, 1983, respondent court denied the motion for reconsideration and on November 22, 1983, Johnson & Johnson filed a petition for writ of mandate and/or prohibition.

The cases in which Melani Galimidi and Wendy Lawton are real parties in interest took a similar path.   Complaints were filed on July 7, 1980.   Summons and complaint in each case was mailed on July 6, 1983.   Return of service was filed on July 7, 1983, and later amended to show the return receipt dated July 11, 1983.   Motions to quash service and to dismiss were denied on November 4, 1983.   Petitions for writ of mandate and/or prohibition were filed on November 22, 1983.

On January 23, 1984, this court consolidated the petitions for oral argument and decision and issued an alternative writ of mandate.

Discussion

 Section 581a, subdivision (a) requires a trial court to dismiss an action “unless the summons on the complaint is served and return made within three years after the commencement of the action ․” (emphasis added) except in circumstances not present in the cases before this court.   If service of the summons and complaint and return thereon was not completed within three years, respondent court was required to quash service and dismiss the actions at hand.   Writ of mandate will lie to require the performance of that duty.  (Dresser v. Superior Court (1964) 231 Cal.App.2d 68, 73–74, 41 Cal.Rptr. 473.)   We find that service was not completed within three years, nor proper return made within three years and accordingly grant the requested writ.

Process was served on petitioner pursuant to section 415.40 which provides “A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt.   Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.”   In all three of the cases before this court actual delivery of the complaint and summons was made after the expiration of three years from the date of filing of the complaint and after the date that the proof of service was executed.   Real parties rely on Ginns v. Shumate, supra, 65 Cal.App.3d 802, 135 Cal.Rptr. 604 and Billings v. Edwards (1979) 91 Cal.App.3d 826, 154 Cal.Rptr. 453 to support the trial court's decision.   However, in those cases process was served pursuant to section 415.20 which provides for service by leaving a copy of the summons and complaint at defendant's office and thereafter mailing a copy of the documents.   The section concludes similarly to section 415.40, i.e., “Service of the Summons in this manner is deemed complete on the 10th day after such mailing.”   In Ginns, the summons and complaint had been left at the defendant's office and mailed and the proof of service had been filed within three years of commencement of the action.   The 10-day period, however, was not completed within the three years.   The court held that the 10-day period was a matter of grace, to allow actual notice to be brought to defendant before the beginning of the period allowed for filing an answer prior to default.   Service was effected when all the acts required to accomplish the service, i.e., actual delivery of summons and complaint and mailing of copy of summons and complaint, and return of service had been accomplished.  (65 Cal.App.3d at pp. 805–806, 135 Cal.Rptr. 604;  see also Billings v. Edwards, supra, 91 Cal.App.3d at p. 830, 154 Cal.Rptr. 453.)

 Ginns v. Shumate and Billings v. Edwards are not apposite because the 10-day grace period is not the problem with the service here.   Service under section 415.40, unlike section 415.20, requires a return receipt to accomplish service.   This is further made clear by section 417.20 which provides that if summons is served on a person outside this state pursuant to section 415.40, “proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence ․”  Moreover, as pointed out in M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770, 145 Cal.Rptr. 814.  “The Judicial Council Comment, an additional guide to statutory interpretation [citation], states that proof of service in the case of service by mail (§ 415.40) must show (1) the time and place a copy of the summons and complaint was mailed, (2) the name, title or representative capacity and address of the person or persons to be served, (3) ‘the name, age, etc.,’ of the person who deposited the papers in the post office or mailbox as in the case of personal service.   The comment further states that the affidavit or certificate must be accompanied by a return receipt of other satisfactory evidence of delivery to the person to be served.”  (Emphasis added.)   Obtaining the signed return receipt is one of the acts required to accomplish service.  (Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110–111, 92 Cal.Rptr. 151;  see also Neadeau v. Foster (1982) 129 Cal.App.3d 234, 236–237, 180 Cal.Rptr. 806.)

 In the instant case, the signed return receipt was, in fact, obtained.   It was not, however, obtained within three years from the commencement of the action.   Moreover, it could not have been obtained within three years of commencement since the addressee did not receive the summons and complaint until after the three year period had expired.   Therefore no amendment of the proof of service filed within the three year period could cure the defect.   A court may allow the amendment of a proof of service nunc pro tunc to conform to the facts.  (M. Lowenstein & Sons, Inc. v. Superior Court, supra, 80 Cal.App.3d at p. 771, 145 Cal.Rptr. 814;  Ginns v. Shumate, supra, 65 Cal.App.3d at p. 802, 135 Cal.Rptr. 604.)   However, “the court can only make the record show that something was actually done at a previous time;  a nunc pro tunc order cannot declare that something was done which was not done.”  (4 Witkin, Cal.Procedure (2d ed. 1971) p. 3223;  see Botsford v. Pascoe (1979) 94 Cal.App.3d 62, 70, 156 Cal.Rptr. 177.)   Here, the amendment could only show that the return receipt was not executed until May 2, 1983, and thus could only show that service was not complete until that date more than three years after the commencement of the action.

Plaintiffs complain that they did all the acts required of them to accomplish service.   Service by mail, of necessity, depends upon acts of third persons, i.e., the postal service and the person accepting service.   Thus, service may not be effective even after plaintiffs have properly performed their role.   (See e.g. Stamps v. Superior Court, supra, 14 Cal.App.3d 108, 92 Cal.Rptr. 151.)   In the instant cases, however, it would appear that there was no delay in mail service.   It should be obvious to anyone in San Francisco, that a letter sent by regular mail from there to New Brunswick, New Jersey would not be received on the date it was mailed.   In the cases before us the mailings were made on the last day of the three year period.   Further, the mailings were received about six days later, not an unreasonable time.   The delay in service in these cases was not caused by the acts of third parties.

Let a peremptory writ of mandate issue compelling the respondent court to vacate its orders of denial and to enter its order granting petitioner's motion to quash service of summons and motion to dismiss.

FOOTNOTES

1.   All statutory references herein will be to the Code of Civil Procedure unless otherwise specified.

2.   Named as a defendant was McNeil-Laboratories Inc., a Division of McNeil-Lab, Inc.   Petitioner Johnson & Johnson was served as successor in interest to that defendant.

PANELLI, Associate Justice.

CALDECOTT, P.J., and POCHE,́ J., concur.